United States v. Sarantos

• Decision Date: 03 February 1972
• Docket Number: 276,No. 275,71-1817.,Dockets 71-1816,275
• Citation: 455 F.2d 877
• Parties: UNITED STATES of America, Appellee, v. Robert SARANTOS and Constantine Makris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

455 F.2d 877 (1972)

UNITED STATES of America, Appellee, v. Robert SARANTOS and Constantine Makris, Defendants-Appellants.

Nos. 275, 276, Dockets 71-1816, 71-1817.

United States Court of Appeals, Second Circuit.

Argued November 12, 1971.

Decided February 3, 1972.

Henry J. Boitel, New York City, for appellant Sarantos.

H. Elliot Wales, New York City, for appellant Makris.

James T. B. Tripp, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., W. Cullen MacDonald and John W. Nields, Jr., Asst. U. S. Attys., on the brief), for appellee.

Before FRIENDLY, Chief Judge, FEINBERG, Circuit Judge, and DAVIS, Judge.^*

FEINBERG, Circuit Judge:

Defendants Robert Sarantos and Constantine Makris appeal from judgments of conviction after a 15-day trial before Judge Inzer B. Wyatt and a jury in the United States District Court for the Southern District of New York. Sarantos was convicted on five counts of conspiring to make false statements to the Immigration and Naturalization Service (INS) and to defraud the United States Government in violation of 18 U.S.C. §§ 371, 1001, 1546. Makris was found guilty along with Sarantos on two of those counts. Sarantos was also convicted separately on seven counts of aiding and abetting others to make false statements to the INS in violation of 18 U.S. C. §§ 1001 and 2.¹ Each defendant received a short prison sentence and a period of probation.² On this appeal, Sarantos and Makris challenge various portions of the trial court's charge to the jury. We find no error and affirm their convictions.

I

Viewed in the light most favorable to the Government, the record reveals the following facts: Sarantos and Makris were participants in illegal plans to obtain permanent residence in this country for male Greek aliens. Defendants sought to take advantage of an immigration rule that permitted the alien spouse of a United States citizen to obtain an immigrant visa, which entitled the alien to enter the country as a permanent resident regardless of whether the yearly quota of immigrant visas allotted to the alien's country had been exhausted. To exploit this special exception to the quota system the participants employed a scheme generally involving two steps: First, a sham marriage was arranged between the Greek alien and a Puerto Rican women who was a United States citizen; and second, a visa petition³ was prepared over the wife's signature, stating falsely that the married couple was living together as man and wife.

Makris was essentially a marriage broker. He helped to locate Puerto Rican women who were interested in marrying Greek aliens in return for a fee. He also assisted in arranging sham marriages. Sarantos, an attorney, was involved in the second stage. The parties to the sham marriages visited his office shortly after the wedding ceremony. There the wife would sign a visa petition in blank, which Sarantos would later complete and file with the INS. In each case the petition stated falsely that the parties were living together as husband and wife. Sarantos also instructed wives who were called before the INS to say that they were living with their husbands but not to mention that they were paid to marry. Although the Government failed to show that Sarantos was ever explicitly told that the couples were not living together, it did furnish abundant evidence that Sarantos was informed of the sham nature of the marriages: In some cases newlyweds required in his presence the aid of an interpreter or sign language because they shared no common language; divorce papers were executed simultaneously with immigration papers; Sarantos was told the wife was being paid a fee; and Sarantos was at least indirectly informed that the parties were not living together. The prosecution also established that several of the couples purported to be living in buildings owned or managed by other clients of Sarantos, which might be considered "safe" addresses; i. e., the managers would be expected to tell an INS investigator that the couples were actually living together. On this evidence, the jury found Sarantos guilty not only of conspiracy but also of aiding and abetting the making of false statements to the INS.

II

A. Sarantos

Before the case went to the jury the trial court instructed the jurors on the elements of the crimes charged against Sarantos. The jury was told, among other things, that before they could find Sarantos guilty of aiding and abetting the making of false statements they must conclude that "he knew . . . the statements were false and that he wilfully and knowingly participated in furthering the conduct." After defining knowingly and wilfully as meaning that "one knows what he or she is doing, as distinguished from an inadvertent or careless act," the court further charged the jury that:

. . . if you find that Mr. Sarantos acted with reckless disregard of whether the statements made were true or with a conscious effort to avoid learning the truth, this requirement is satisfied, even though you may find that he was not specifically aware of the facts which would establish the falsity of the statements.

The attorney for Sarantos objected to the charge on the ground that reckless disregard of the falsity of the statements or a conscious effort to avoid learning the truth did not amount to "knowledge." The trial court overruled the objection, and Sarantos now claims the court committed reversible error.

The charge on the issue of knowledge given by the district judge in this case was taken almost verbatim from a charge which we upheld recently in United States v. Egenberg, 441 F.2d 441, 444 (2d Cir. 1971), cert. denied, 404 U.S. 994, 92 S.Ct. 530, 30 L.Ed.2d 546 (U.S. Dec. 14, 1971), a case also involving 18 U.S.C. § 1001. The court in Egenberg in turn relied on another decision of this court in United States v. Abrams, 427 F.2d 86, 91 (2d Cir.), cert. denied 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970). We held in Abrams that there was sufficient evidence to convict an attorney of knowingly causing the making of a false statement in an affidavit which he completed over his client's signature and filed with the INS, and we stated:

Although appellant may not have been specifically aware of what his client\'s plans for departure were, the jury could have found from the evidence that appellant acted with reckless disregard of whether the statements made were true and with a conscious purpose to avoid learning the truth.

Defendant offers a number of arguments why these decisions should not foreclose his objection to the charge. First is a frontal attack on Abrams, which defendant urges us to overrule. He contends that when an attorney is charged with aiding and abetting the making of a false statement it cannot be enough to show reckless disregard of its falsity. Otherwise, defendant claims, we radically alter the attorney-client relationship and make the attorney "an investigative arm of the government."

We stand by our decision in Abrams. Its purpose in cases such as this was to prevent an individual like Sarantos from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct. Our ruling in Abrams was intended to foreclose this possible loophole, not to create a new crime as defendant suggests. Compare Morissette v. United States, 342 U. S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Construing "knowingly" in a criminal statute to include wilful blindness to the existence of a fact is no radical concept in the law. See, e.g., Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969);⁴ United States v. Squires, 440 F.2d 859, 863-864 (2d Cir. 1971).⁵ Nor can it be said that the Abrams decision changes the lawyer's role. We have not held, as appellant contends, that an attorney must investigate "the truth of his client's assertions" or risk going to jail.⁶ We have held, and continue to hold, that he cannot counsel others to make statements in the face of obvious indications of which he is aware that those assertions are not true. Cf. United States v. Benjamin, 328 F.2d 854, 862-863 (2d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964).

Defendant also argues that Abrams conflicts with the statement this court made in United States v. Diogo, 320 F. 2d 898, 906 (2d Cir. 1963), that "under 18 U.S.C. § 1001 a person does not answer official questions at his peril." The argument overstates the effect of our holding in Abrams and misinterprets our statement in Diogo. The latter was directed to the problem of determining whether a particular answer to an official question is true or false. The court was referring to the well established rule that to ascertain truth or falsity one must look to the meaning intended by the party who gave the answer and not to the interpretation, however reasonable, given it by government authorities. Our holding in Abrams, and here, does not in any way conflict with that proposition.

Sarantos next argues that even if we uphold Abrams, we should overrule, or at least modify, our decision in Egenberg because it improperly expanded the ruling in Abrams. Sarantos points out that in Abrams we stated that "the jury could have found . . . that appellant acted with reckless disregard of whether the statements made were true and with a conscious purpose to avoid learning the truth" (emphasis added), whereas in Egenberg we upheld a charge which substituted the word "or" for "and." Since the court below followed the disjunctive phrasing of Egenberg, appellant argues that we should revert to the Abrams formulation and reverse his conviction. We see no reason to take such drastic action. The phrases "reckless disregard of whether the statements made were true" and "conscious purpose to avoid learning the truth" mean essentially the same thing. Cf. Model Penal Code § 2.02(2) (c) at 26. Therefore, any differences in meaning that...